Moreland v. Leslie

• Decision Date: 16 December 1942
• Docket Number: No. 8016.,8016.
• Citation: 166 S.W.2d 902
• Parties: MORELAND v. LESLIE, Chief Justice, et al.
• Court: Texas Supreme Court

166 S.W.2d 902

MORELAND v. LESLIE, Chief Justice, et al.

No. 8016.

Supreme Court of Texas.

December 16, 1942.

Original application by H. J. Moreland for a writ of mandamus to be directed to William P. Leslie, Chief Justice, and others, to compel the Court of Civil Appeals at Eastland to certify a question of venue.

Order in accordance with opinion.

McMahon, Springer & Smart, of Abilene, for relator.

Wiley Caffey, of Abilene, for Hawley Independent School Dist.

BREWSTER, Commissioner.

This is an application by H. J. Moreland for a writ of mandamus to compel the Court of Civil Appeals at Eastland to certify the following question of venue: "In order to hold venue under subdivisions 9 and 29a of Article 1995 [Vernon's Ann. Civ.St.], where suit is brought against two persons for joint and several judgment for damages, on the theory that a trespass has been committed, is it necessary for plaintiff to allege in his controverting affidavit and prove on the hearing that the person alleged to be the agent of the other is in fact the agent and acting within the scope of his authority?"

Hawley Independent School District sued Moreland, Harber and Edins in Jones County for damages sustained in a collision between a school bus owned and operated by it and a truck owned by Moreland and Harber but operated by Edins. The collision occurred in Jones County. All defendants resided in Taylor County. Edins answered on the merits. Harber filed a plea of privilege to be sued in Taylor County, and when it was sustained he was dismissed from the suit. Moreland filed a similar plea, which was controverted. After a hearing, it was overruled. The Court of Civil Appeals sustained the order of the trial court, Justice Funderburk dissenting. Moreland v. Hawley Independent School District, 163 S.W.2d pp. 892, 894, 901. Two grounds urged there for reversal of the trial court's judgment were (1) that there was no evidence that Edins, driver of the truck, was the agent of Moreland; (2) there was no evidence that in driving the truck he was acting within the scope of his authority. As to the factual basis for these contentions, the Court of Civil Appeals said: "There was evidence that the truck was owned by H. J. Moreland; but there was no other competent evidence of any probative value upon said issues. There was no evidence that Joe Edins in driving the truck was performing any service for the owner. There was no evidence that he was an employee of Moreland. There was, therefore, of course, no evidence that if he was an agent or employee he was acting within the scope of his employment." (Italics ours.)

Under those facts, the opinion of the Court of Civil Appeals is in direct conflict with its own prior unanimous decision in Longhorn Drilling Corporation v. Padilla, 138 S.W.2d 164, 166, which declares, in clear and unambiguous language, that: "In order for plaintiff to bring her case within exceptions 9 and 23 of Art. 1995, it was incumbent upon plaintiff to discharge the burden of proof resting upon her to establish not only that a trespass was committed in Nueces County (subd. 9) and not only that a part of her cause of action against the defendant corporation arose in Nueces County (subd. 23), but she was further required to establish, under the circumstances of this case, that the truck which struck her child was owned by defendant, that its driver was an agent of defendant, and that such driver was acting within the scope of his employment at the time." (Italics ours.)

Moreover, that case was cited with approval in Brown Express, Inc., v. Arnold et ux., 138 Tex. 70, 157 S.W.2d 138, 139, wherein we said: "Under Sub. 9, of Art. 1995, supra, a nonresident defendant cannot be sued outside the county of his residence unless he has participated in the trespass in the county where the suit is filed. * * * Obviously, if Brown Express, Inc., committed a trespass in Comal County against Arnold it did so only because of some positive act committed by Walker. It is equally true that no positive act of Walker's could be regarded as that of Brown Express, Inc., unless in committing the same he was acting in the course of his employment by it. * * * To sustain venue in this case on the ground of trespass certainly the plaintiff would have to show (1) that the act of Walker constituted a trespass; (2) that he was the agent of Brown Express, Inc., and (3) that when he committed it he was acting in the course of his employment as such agent."

Brown Express, Inc., v. Arnold et ux., supra, is but an application of the...